Michael McFalls,
Apr 29, 2013

Transactional work can provide outside antitrust counsel immense opportunities to create, cement, and expand relationships with in-house counsel. For IP-intensive businesses, antitrust counsel can provide a useful and often essential complement to the role that lead IP counsel often play as consigliore to a patentholder. For run-of-the-mill antitrust work associated with horizontal acquisitions, antitrust counsel can learn a significant amount about core businesses of the client in a very short period of time. For tough antitrust issues arising from high-stakes mergers and acquisitions, antitrust counsel can create enduring relationships with counsel with significant spillover to other types of antitrust work, particularly counseling on nonmerger issues involving related businesses, and, if necessary, related antitrust litigation.

Just as these engagements can create opportunities for antitrust counsel to expand their relationships, they can just as easily lead to the end of relationships between outside counsel and clients. Obviously, poor or subpar results should always lead counsel to reconsider their relationship with the lead outside lawyer, and, in some circumstances, with the related law firm. But results are not necessarily the only or even most significant driver of client satisfaction. The process of reaching a result can be often more important than the result itself in serving clients, especially when that process involves a Second Request and months of tense engagement with the government, external stakeholders, and the merging parties themselves.

This process involves a series of decisions that outside antitrust counsel and in-house counsel make during the course of an engagement about how to divide certain responsibilities in the course of the antitrust engagement. Although those decisions (and the process of reaching them) may have an important impact on client relationships, we do not discuss those implications here. Nor do we describe our thoughts on the best way to allocate those responsibilities to maintain or enhance client relationships. Instead, we simply catalogue the variety of roles that either external or in-house counsel (or other client employees) can assume over the course of a transactional antitrust engagement.

Our assumption is that an effective outcome with the agencies or opposing counsel is the primary goal shared by external and in-house counsel. And our experience is that there are no hard-and-fast rules on how these roles should be allocated. Ultimately, the best way to divide responsibilities depends on what the situation may demand, what the client prefers, and, most importantly, what particular strengths external and in-house counsel can bring to a particular engagement. Certain default rules can be useful, but rigid playbooks are often not.